Reitman v. Neulander — 64 N.Y.S. 349

Majority

p. 349

REITMAN v. NEULANDER.

(Supreme Court, Appellate Term.

May 1, 1900.)

Headnote

Failure of Proof—Judgment on Merits.

In an action on a note, where plaintiff offers no evidence of a demand on the maker, the only paper offered in evidence being the note, judgment should not have been given on the merits, as there was simply a failure of proof.

p. 350

Appeal from municipal court, borough of Manhattan, Fourth district.

Action by Albert Reitman against Morris Heulander on a note. From a judgment in favor of defendant, plaintiff appeals.

Affirmed as modified.

Argued before TRUAX, P. J., and SCOTT and DUGRO, JJ.

Jacob Rieger, for appellant.

Henry L. Franklin, for respondent.

The plaintiff offered no evidence of a demand upon the maker. The only paper offered in evidence, according to the return, was the note. The evidence upon a former trial and the exhibits used at that trial are in the return, but to no purpose. The evidence did not warrant a judgment upon the merits. There was simply a failure of proof.

The judgment is therefore modified so that the action is dismissed without prejudice to a new action, and as modified is affirmed, without costs.